Legal issues in emergency declaration revisited

June 10, 2013 : Jiti Ogunye

Chief Justice of Nigeria, Justice Alooma Mukhtar

On Tuesday, May 14, 2013, President Goodluck Jonathan, in “exercise” of the powers conferred on him by the provisions of Section 305(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, in a televised national broadcast, declared a state of emergency in the North-Eastern States of Borno, Adamawa and Yobe “in order to restore public order, public safety and security in the affected States of the Federation”.

In the address, which focused on the recent spate of terrorist activities and protracted security challenges in some parts of the country, the President stated that “extraordinary measures to restore normalcy” had to be taken. President Jonathan directed the Chief of Defence Staff to “immediately deploy more troops to these states for more effective internal security operations”. The troops and other security agencies involved in these operations, according to the President, “have orders to take all necessary action, within the ambit of their rules of engagement, to put an end to the impunity of insurgents and terrorists, including the authority to arrest and detain suspects, the taking of possession and control of any building or structure used for terrorist purposes, the lock-down of any area of terrorist operation, the conduct of searches, and the apprehension of persons in illegal possession of weapons.”

While promising that the details of “this emergency proclamation” would be transmitted to the National Assembly in accordance with the provisions of the Constitution, the President clarified that within the purview of the “Proclamation”, the governors and other political office holders in the affected states would continue to discharge their constitutional responsibilities.

Days after the broadcast, the two Houses of National Assembly received the Emergency Proclamation Gazette from the President, and votedto approve of the proclamation of a state of emergency.

The action of the President elicited divergent views in the media, amongst the political class and the civil society. Among the issues in discourse were whether the declaration of a state of emergency was necessary or justifiable in the circumstances; whether it will permanently resolve the problem of insurgency in the North East; whether it will not only temporarily suppress it, or even complicate and worsen it or whether the enforcement of the emergency powers or orders, given by the President, would not be attended by gross human rights abuses and violations.

It was also in contention whether the military operation would not alienate the local population and whether the usual anti-civilian excesses of the military would not radicalise indigenes and drive the moderate mass of the population into extremism; whether the declaration of emergency has not made the amnesty offer to the insurgents, and the Amnesty Committee, itself, untenable or whether the state of emergency declaration is complete and far reaching enough by the non-dissolution or suspension of the operation of the legislative and executive arms of government in the three states or whether such dissolution or suspension can be ordered by the President, permissible under a declaration of a state of emergency or is not a negation of constitutional democracy.

The public also raised issues as to whether the legislative and executive arms of government in the three states can, realistically, co-exist, without let or hindrance, with the state of emergency and the martial order created under it; whether civil governance, established under the Constitution, can effectively discharge its authority in this state of emergency, and whether it will not be in limbo?

Our unequivocal view is that the situation in the North East calls for a declaration of a state of emergency but so also is the situation of the entire country. Nigeria, as a territorial whole, and Nigerians as a people, not just the peoples and territory of the North-East States, are in an undeclared state of permanent emergency.

The main legal issues that have emerged from the President’s declaration of a state of emergency are whether the President strictly followed the procedure prescribed by the Constitution in declaring a state of emergency, and whether the democratic structures in the States covered by the declaration ought not to have been suspended from operating during the emergency period.

Regardless of the endorsement of the proclamation of the state of emergency by the National Assembly, we submit that the President did not adhere strictly to the provisions of the Constitution in declaring the state of emergency. The President’s broadcast on the May 14, 2013 was not and could not have been a declaration of a state of emergency. The President cannot single-handedly declare a state of emergency under the provisions of Section 305 of the Constitution. What the President did on May 14 was to merely broadcast or announce a state of emergency. This is no hairsplitting semantics. Unfortunately, the President, in his broadcast, interchangeably said he was “declaring” a state of emergency. The President has no such powers. Under Section 305 of the Constitution, the President can only issue “a proclamation of a state of emergency”. Without any attempt to be pedantic, we state that by the marginal note of Section 305, “procedure for declaration of a state of emergency” is not a one step or stage process. The proclamation of a state of emergency cannot be accomplished outside the official gazette of government; and the issuance of a proclamation of a state of emergency in the Official Gazette, by the President, without more, does not constitute a declaration of a state of emergency, let alone a mere broadcast on television. Such a proclamation in the Official Gazette is inchoate and incomplete unless and until the National Assembly passes a two-third majority resolution approving of the proclamation.

Sadly, many commentators started hailing the “declaration of a state of emergency” as soon as the President made his broadcast. And even the deployed armed forces reportedly “imposed a dusk to dawn curfew” in certain areas covered by the “emergency declaration”, before the approval vote of the National Assembly. Thus, the Presidency had started exercising “emergency powers” before the approval of the National Assembly. This is unconstitutional.

The President, as the Commander-in-Chief of the Armed Forces, of course, has the power, under Section 217 (2) (b & c ) and Section 218 (1) of the Constitution “to determine the operational use of the armed forces” in “maintaining the territorial integrity” of Nigeria, and in “suppressing insurrection and acting in aid of civil authorities to restore order”. So, the President can order a “troops surge” without resorting to Section 305 of the Constitution and “declaring a state of emergency”. Once the President resorted to Section 305, however, he must comply with the provisions thereof, totally.

For the avoidance of any doubt, Section 305 (1-2) of the Constitution provides that “subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof; (2) The President shall immediately after the publication, transmit copies of the Official – Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation”.

It is clear from the wording of Section 305(1&2), that the President can only issue a proclamation of a state of emergency in an instrument published in the official gazette, which, depending on its approval by the National Assembly, after transmission of the official gazette thereto and consideration thereof, may transmute or ripen into a declaration of a state of emergency. The President has no constitutional obligation to broadcast a “declaration of state of emergency”, on national television, as he did. The President may “by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof”, without a broadcast. And if he wanted to make a broadcast, the broadcast ought to come after, and not before, he has “by (an) instrument published in the Official Gazette of the Government of the Federation issue(d) a Proclamation of a state of emergency in the Federation or any part thereof”. The mode of issuing a proclamation of a state of emergency is “by (an) instrument (that is) published in the Official Gazette of the Government of the Federation”. It is not by a text of an address or a television broadcast, which will later form the content of an instrument to be published in the official gazette, or the details of which will later be supplied in an official gazette, as the President erroneously suggested. Upon issuing the proclamation, as directed by the Constitution, the President must immediately transmit the Official Gazette to the National Assembly for a vote of approval. The President cannot refuse, neglect or fail to transmit the proclamation gazette, after its publication; Even if the President fears a legislative disapproval of his proclamation of a state of emergency and his consequential loss of face, the President must ( the word used in the Section is “shall”) transmit the proclamation gazette.

The President cannot use a radio or television broadcast, or a newspaper or online publication to issue a proclamation. These media are not the constitutionally prescribed platform or means of issuing a proclamation. This view has taken into consideration the phrase “the President may by instrument published in the Official Gazette of the Government of the Federation” used in Section 305 (1). The word “may”, in the context of Section 305 (1), only gives the President a discretion, when a state of emergency exists or is warranted, to issue or not to issue a proclamation, and not a discretion on the choice of the medium wherein the proclamation is to be issued. The one and only medium or means of proclaiming a state of emergency under the Constitution is an official gazette. There can be no valid proclamation outside the Official Gazette. Announcement, declaration and proclamation of a state of emergency do not have the same meaning under the Constitution, so as to make no difference whether the President issues a proclamation, or makes a declaration or an announcement. The literal or dictionary meanings of these three words may be the same, but their constitutional imports, in the context of Section 305, are not. In a constitutional democracy, the purpose of exercise of power is as important as the method of exercise of power. This is why we insist that a proclamation of a state of emergency should be made in the constitutionally prescribed format. This is substance, not sheer pedantry.

The other issue is the question whether a proclamation or a declaration of state of emergency necessarily implies the temporary suspension, removal or demolition of democratic structures? The answer is no. All democratic structures or institutions in the country, including the office of the President owe their existence to the same document: the Constitution. Thus, the President cannot, under the pretext of a proclamation of a state of emergency, suspend the Governor of a State or dissolve, disband or suspend the House of Assembly of a State. Section 11(4&5) of the Constitution does not support such a proposition. The only conceivable ground for dissolving a state house of assembly or removing a governor under a declaration of a state of emergency is when these authorities declare secession from Nigeria, are levying war against Nigeria or declare that they no longer bear allegiance to Nigeria. In other words, when the anti-Nigeria acts of these institutions are the reasons for the declaration of a state of emergency, arguably, they may be dissolved.

President Obasanjo’s perversion in Plateau and Ekiti States, during his presidency, when both the executive and legislatives arms of government were suspended from operation, and, in their stead, retired military officers were appointed as sole administrators, is being cited as an ideal declaration of a state of emergency. So also was the fraudulent declaration of a state of emergency in Western Region in 1962, by the NPC/NCNC Federal Government, obviously to save an ally, Chief Samuel Akintola – the Premier – from falling from power, and to decimate the political opposition – the Action Group. The legal history of that perfidious intervention is captured in the Privy Council’s decision in the case of Adegbenro v Akintola ( 1963) 3 WLR, 63

Making a case for the dissolution of houses of assembly and the removal of governors on the grounds of the alleged ineffectiveness of the state governments in tackling the security challenges in their states is misleading. A state government that is not in control of the military, police, civil defence corps, prisons, customs, immigrations, State Security Service, National Intelligence Agency and Directorate of Military Intelligence cannot tackle any security challenges, beyond advertising vehicles and weapons procurement for policemen, in their respective states. The police and the Armed Forces are unitary entities, under the Federal Government and the President, the Commander-in-Chief ( See Sections 214-218 of the Constitution). Thus, the responsibility to secure lives and property in the North Eastern States is not determined by the physical governance of the states by the governors and the making of laws in those States by their Houses of Assembly, but by the control and monopoly of the armed forces and security agencies in the Federation by the Federal (central) Government.

So, if any democratic structures or arms of government ought to be dissolved, disbanded or suspended for ineffectiveness in tackling the security situation in the North East, it is the Presidency, the federal executive branch of bovernment and/or or the National Assembly. In any case, nobody in his right senses will argue that if a state of emergency is declared in Nigeria as a whole, the Presidency and the National Assembly must be suspended from operation. The point is missed. A declaration of a state of emergency is meant, in part, to preserve the lives of democratic institutions, not to temporarily terminate them.

When the Plateau State precedent was created in 2004, many interveners, including the Patriots, Chief Gani Fawehinmi, Professors Ben Nwabueze and Itse Sagay had enlightened that the suspension of the “democratic structures” by the Presidency was not in consonance with the provision of the Constitution, and that the Emergency Powers Act, 1961 (on which the government based the suspension) was long repealed. Akin Olujimi, SAN, the then Attorney-General of the Federation, argued to the contrary. In spite of the fact that the Emergency Powers Act was long dead and buried when the Federal Government summoned its ghost to haunt the democratic process. Proof? That Act had been repealed by Section 4 of the Revised Edition (Laws of the Federation of Nigeria) Decree No.21 of 1990 and Paragraph 1(a)(ii) of the Schedule made there under.

Unfortunately, when the Supreme Court of Nigeria had a golden opportunity to make a judicial pronouncement on the arbitrary powers of President Obasanjo, after the lapse of the period of the emergency declaration, the court declined, and chose to strike out the suit challenging the exercise of the emergency powers of President Obasanjo. The Supreme Court held, erroneously, in our view, that the suit was not authorised by the plaintiffs, since the action, which was filed in the names of “Plateau State of Nigeria and House of Assembly of Plateau State” was not filed on the instructions of Major-Gen. Chris Ali – the then sole administrator, who had taken over the positions of the suspended Governor Dariye and the House of Assembly. How the Supreme Court could have expected the usurper to initiate an action against himself and his appointing authority, in the name of the democratic institutions whose powers he had usurped, is baffling. ( See the case of Plateau State v A-G.; Federation, 2006,3NWLR,Pt. 967, pg 346 at 393-395)

PUNCH, I LOST MY INTEREST WITH YOUR ORGANISATION WHEN AZUBIKE LIFT YOUR YOU, HE WAS ONE VOICE OF REASON AND PROGRESS. I HAVE BOUGHT YOUR PAPER EVERY DAY FOR THE PAST 15yrs BUT NOW I WILL HAVE TO MOVE ON. YOU HAVE SEIZE TO BE OBJECTIVE IN YOUR REPORT AND ANALYSIS, YOU HAVE NOW BECOME A TRULY SECTIONAL DAILY PAPER. IT IS WITH PAIN I DROP MY PUNCH.

Columnists

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